Dispelling myths of civil legal aid reform

A completely new framework for civil legal aid, including a new fee structure, should be in place by next April after the Council of the Law Society voted in favour of the new regime at last month’s Council meeting.

Anecdotal evidence suggests that the profession is less than wholehearted in its enthusiasm for a reformed system that introduces significant new elements including quality assurance and a revised and simplified accounting model. For Convener of the Society’s Legal Aid Committee, Ian Smart, it marks a further stage in a process that remains a hard sell to a sceptical profession.

“There is an impression in certain quarters that the Society and the people who negotiate on behalf of the Society have arrived from Mars. I have been a civil legal aid lawyer for 22 years, dealing with cases on a day-to-day basis and I am well aware of the drawbacks of the present system and how far the levels of remuneration for legal aid have fallen behind in the last ten years.

“You can see there are no young people coming into this area of work and I think there is finally an appreciation on the part of the Scottish Executive that we are building up to a future skills crisis.”

Background to reform

A Working Party set up at the beginning of 2001 under the convenorship of Past President of the Society, Michael Scanlan, produced a paper that made an “unarguable” case for an increase in fees for civil legal aid cases. However, the Scottish Executive said politely but firmly that “a moral case for an increase in legal aid fees was not something they were interested in”, said Ian Smart.

“They said we would have to show them two things: first that there was evidence of clients having difficulty finding a lawyer to deal with a civil legal aid action and secondly that we recognised that there were flaws in the current system.

“The Executive said absolutely conclusively that there was no prospect of getting an increase on the current scheme. I have told this to solicitors at meetings around the country and still it keeps coming back, why can’t we just get an increase on the current scheme?

“If the Society were writing the cheques, we would be getting an increase, but we are not, and to be fair neither are the Legal Aid Board. It is the Executive who make the decisions and they are clearly not prepared to fund that under the present scheme.”

Regulation 18

The Executive asked the Committee to consult with SLAB and identify areas where it was agreed that changes had to be made, and come up with proposals for reform.

What emerged was that the current applications process, and in particular the operation of Regulation 18, was in need of an overhaul.

“People who are critical of the reform plans obviously just choose the bits they don’t like, and don’t give any credit to parts that have been widely welcomed by the profession”, said Ian Smart.

Under the current system all practitioners will be aware of situations where an administrative slip-up can see solicitors not only not getting paid, but having to meet the costs of the case.

“Anybody who has looked at the reform proposal will see that is going to be a thing of the past,” said Smart.

More  contentiously  for  the profession, solicitors will now have to report to the Board on a periodic basis in order for them to take a view on the reasonableness of continuing the case.

“It was clear that in a number of cases what was being litigated about ultimately wasn’t what legal aid had been granted for in the first place. We used an example anyone who works in family law will recognise, where legal aid is granted on behalf of a father who is seeking contact with his children and being refused outright. The Board looks at probable cause and reasonableness and agrees that it is reasonable for that man to get legal aid to litigate for that. But then after the interim process, he is granted contact every Saturday. He then says to his solicitor he doesn’t want contact on Saturday because sometimes he goes to the football. Instead he wants to seek Sunday contact.

“At present, in such an example, the Board does not know any of that despite the issue before the Court having fundamentally changed from that for which legal aid was originally granted. I see no reason they ought not to know when they have a statutory duty to provide legal aid only when it is reasonable to do so.”

A number of practitioners have been critical of being asked to take an early view as to the prospects in a case.

But Smart rejects the notion that cases funded by legal aid should be any different from a privately funded action.

“If a client is putting their own hands in their pocket and you run the case the whole way and the case fails comprehensively, and you then tell the client that at an earlier point you had decided the case was hopeless, then they are entitled to ask why did you not tell them they were spending money on a case which had little or no prospect of success.

“Why shouldn’t the same principle apply to a legal aid case? Why shouldn’t the solicitor be obliged to give a view as to the prospects in relation to a legal aid case to the people being asked ultimately to pay the bill?”

Quality assurance

One of the most radical areas of the package is the introduction of a system of quality assurance.

Again, Smart is asking the profession to be pragmatic and outward looking in its approach to this aspect of the initiative.

“It is a fact of life that for anyone working in the public sector now, quality assurance is the name of the game. I know there is a view that the profession through self regulation, the complaints process, the Guarantee Fund, and all the other things we have put in place ourselves, we already have a system of quality assurance.

“It is my view that while these are all very worthwhile protections, it is not just a matter of us being satisfied amongst ourselves, we have also got to be in a position to demonstrate our quality to the wider world.”

The quality assurance regime is also necessary to root out cases where the solicitors do not satisfactorily assist the process.

“We all know of these cases when we end up on the opposing side and we remember them not because they are routine, but because they are exceptional. We do not however do ourselves any favours by kidding on that these exceptional cases do not exist. What we want is a regime that comes in and says to somebody do you really think you should be doing immigration cases because we have had a look at an immigration file you have done and clearly you don’t have that much of an idea about what was needing to be done.”

Smart opts to compare the quality assurance regime to the HMI inspection of schools - at the absolute margins there is the possibility that the school might fail the inspection but actually the purpose is to help them do better.

“One of the things we were very anxious to ensure was that the quality assurance part of it will be carried out by solicitors who are themselves experienced civil legal aid practitioners. It is only right that our quality assurance is proper peer review. The Board recognise that if we are to get properly qualified people to do it then it is going to be necessary to pay a proper rate for the job.”

In practical terms, the Board will generate a list of recently concluded files from a firm which will be passed to the inspector who will assess it for good practice.

“We’re suggesting this should be a very informal process. If there are minor matters of concern, the inspector will just pick up the phone ask why it was done this way, did you not think of doing this. If there are major matters of concern then it will be open to the inspector to do an on-site investigation.

“We do not think this is going to be a draconian process. The purpose of this whole reform is to make legal aid more widely available to the general public. That’s not going to be achieved by suggesting that large numbers of people currently providing legal aid are going to be put off the road.

“I said at the Society’s AGM and I reiterate it here. The purpose of the legal aid scheme is not to provide employment for lawyers, nor is it to provide the limited number of people who qualify with a level of representation that no person paying for it themselves could afford. The purpose is to get people of limited means access to the justice system.

“In order for that to happen, lawyers have to be properly paid. But the taxpayer is entitled to value for money as well.”

Legal aid accounting
At an early stage in negotiations it was apparent that the present time and line model wasn’t acceptable to the Board.

“At any stage of the negotiations when the Board took that line we could have walked out”, explains Smart.

“We didn’t for two reasons. Firstly, we knew that was the view of the Scottish Executive and since they were the paymasters all that would have happened would have been that we would have got no increase and in two or three years, on our knees and in desperation, we would have to come back and concede it anyway.

“But secondly as experienced practitioners we recognised that there was some merit in what was being said. Time and line often actually rewarded inefficient practice. The lawyer who saw the client and got all the necessary information at the first meeting got paid less than the lawyer who realised after that meeting that they needed further information and would have to see the client again. The lawyer who was prepared and could go to proof at the first proof diet got less than the unprepared lawyer who had to adjourn and go to proof on a second and third occasion. That is not only unfair to taxpayers but not fair to lawyers who were doing an efficient job.”

Work has been done to try and adapt the block table which had 28 chapters and over 140 individual entries to a more manageable table that now has seven chapters and 34 individual entries.

“There is an element of swings and roundabouts, and I make no bones about that. You are getting the adjustment fee which covers everything from the lodging of defences to the close of the record. You get the same fee whether or not the record is closed at the first options hearing, the second or after additional procedure and whether or not you do 40 adjustments or half a page.

“However, we think there is sufficient flexibility built in to the system that overall people will still be rewarded broadly speaking in line with the actual work done. In some cases they will be marginally less well rewarded and in other cases marginally better rewarded.

“In criminal work the straight flat fee can work because I might take on a trial for someone in Aberdeen not because I am going to make money on that individual case, but because I do not want to lose the other cases that client or his family might have locally. That doesn’t apply to civil work because people are rarely divorced more than once, so it has to be the case that the proposal is financially attractive enough that a solicitor will not be turning away an individual case because they cannot make any money from it.”

Negotiations are ongoing with the Board, not least as to the value of the unit. A modelling exercise has been done, based on the unit at £25. Of 399 randomly selected accounts, 369 produce an increased fee from current levels and of those, 338 produce what Smart would describe as a “substantial” increase of 20% or more.

“These are real figures because we know what was paid by the Board under the current system, so that comparison is what they would pay under the new system.

“There is a whole lot of ludicrous misinformation that somehow we are involved in this exercise just to give people a whole lot of additional bureaucracy and that they will be paid less than they are getting at the moment. Apart from that fact that I make my living out of civil legal aid and why would I conceivably want to get involved in such an exercise, it also involves people simply disbelieving all of the objective modelling that has been done and choosing to believe anecdotes and hunches instead.”

SLAB
For Ian Smart, there is a candid recognition that there has been a large element of give and take in this process, and that for the profession concessions have had to be made in order to achieve a better scheme.

“There are things that if I was personally writing the scheme would be different. But, as a solicitor dealing daily with legal aid cases myself, I am in no doubt that what we are proposing will lead to a much better overall scheme.

“In addition, however, there is nothing else on the table. If we refuse to embrace change we will just continue on this spiral of decline where there are fewer and fewer people doing the work and those who do are struggling financially.”

He also acknowledges that there are some in the profession who will never be persuaded that the Board is anything other than “part of an ‘evil empire’ dedicated to undermining the whole principle of an independent legal system in Scotland”. That is, however, a view which Smart himself emphatically rejects.

While relations between the Society and the Board have been strained in the past, a new spirit of co-operation in recent times has, he says, worked to the benefit of the profession.

“At times there is still a mutual exasperation, but it is fair to say that the Board have conceded a lot in the negotiations as well. There is a genuinely positive spirit on both sides to try and keep the civil legal aid scheme working; to make sure that lawyers are properly remunerated and to improve the quality of work.

“I defy anyone to talk to Jean Couper or Lindsay Montgomery (the Board Chairman and Chief Executive) and then say they aren’t committed to defending the system of civil legal aid or that they blindly believe that the Board’s administration is always perfect. Maybe it is time for some people in the profession to concede that we are not always perfect either.

“I’d urge you all to read the proposal, don’t rely on what someone in the agents room tells you and on the feeing side don’t rely on what other people are telling you. One of the purposes of the exercise is that you will now be able to render your own accounts in civil legal aid cases in the same way as summary criminal legal aid cases. It should be a five minute job to take a civil case that you have recently concluded and sit down with the new table and work out what you would be paid. I say with absolute confidence you will not be disappointed.”